Gray v Mbekwa and Others (JR 2699/2008) [2013] ZALCJHB 249 (8 August 2013)

REPUBLIC OF SOUTH AFRICA

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

JUDGMENT

Not Reportable

Case no: JR 2699/2008

In the matter between:

SEAN GRAY ..............................................................................................................Applicant

and

N P MBEKWA N.O. ......................................................................................First Respondent

COMMISION FOR CONCILIATION,

MEDIATION AND ARBITRATION (“CCMA”) .........................................Second Respondent

MTN SP (PTY) LIMITED ..............................................................................Third Respondent

Heard: 21 December 2012

Delivered: 08 August 2013

Summary: Application for review; absence of record;

judgment

WALELE, AJ

This matter concerns an application launched in terms of section 145 of the LRA by the Applicant to review and set aside an arbitration

award of the First respondent in its entirety as a Commissioner of the CCMA (the second respondent). The First Respondent issued an award on 17 September 2008, under case number GAPT 8883-07, that the dismissal of the Applicant was procedurally and substantively fair. The application is opposed. The Applicant has applied for condonation for the late filing of its supplementary affidavit and the Third Respondent is seeking condonation for the late filing of its opposing affidavit and the Applicant has opposed same.

The Applicant seeks that the finding of the First Respondent be substituted with a finding that the dismissal was unfair in all

respects and that the maximum compensation be awarded to the Applicant.

Alternatively, that the matter be remitted to the Second Respondent for determination de novo before a Commissioner other that the First Respondent.

The Applicant was initially charged with 2 charges of misconduct of being in possession of and consuming illegal drugs during working hours and on Company premises and for downloading/accessing or receiving pornographic and profane material. A further charge was added, namely; damage to company property (the camera placed in his office by the Third Respondent).

Applications for condonation

The Third Respondent’s is seeking an indulgence for the late filing of its answering affidavit that constitutes 181 court days. The reason proffered by the Applicant was that the erstwhile attorneys did nothing to file an answering affidavit. It does not seem that Third Respondent did anything either to ensure that the matter is given any attention. The Third Respondent only acted upon this matter when the Applicant filed its head of argument in January 2012 and then a delay was occasioned in this regard. The Third Respondent only filed its answering affidavit on 22 March 2012 after having sought an indulgence of 10 days. This too in respect of a matter that the record was not made available to the parties. There is a limit to the extent that a litigant can lay the blame of non action on the part of its legal representative. Having had regard to the principles applied in similar circumstances, I do not believe that the Third Respondent has made a case wherein condonation in terms of Rule 12 of the Rules of this Court should be granted and simply hide behind the dilatory conduct of its erstwhile attorneys.

Accordingly, I do not deem it necessary to deal with the condonation application of the Applicant’s replying affidavit.

Grounds of review

The Applicant claimed that the award stands to be reviewed and set aside on the grounds that the First Respondent either committed a gross irregularity or misconduct in the conduct of the arbitration proceedings, alternatively that she exceeded her powers in that:

7.1. The First Respondent found him guilty of being in possession of and consuming an illegal drug during working hours and on Company premises. The Applicant testified that he sniffed “Thinz” which is a dieting tablet that has a stimulating and boosting effect but is not an illegal drug. The Applicant claimed that he bought it over the counter at a chemist without a prescription.

7.2. There was no illegal drugs found in his office and despite offering to have his blood tested the Third Respondent did not take up the offer.

7.3. The Third Respondent’s witnesses testified that they did not know what the Applicant was sniffing. Despite the aforesaid the First Respondent found that the Applicant was sniffing an unknown substance and reached a conclusion that the Applicant had been in possession of and consumed an illegal substance.

7.4. There was thus no rational connection between the evidence adduced and that conclusion reached by the First Respondent

7.5. The Applicant denied that he accessed sites referred to as pornographic and profane. The Applicant stated that the nature of his job was such that it required of him to work on more than one computer at the same time and necessitated that he be logged on to more than one computer

7.6. The First Respondent reached a conclusion by balancing his defence that others could have accessed his computer and accessed the sites with the Third Respondent’s policy on computer usage. The Applicant was not charged for non compliance with the Third Respondent’s log in and password policy or any other Policy on computer usage.

7.7. The First Respondent misdirected herself in respect of what the Applicant was charged with and failed to properly consider his testimony.

7.8. In so far as the charge relating to the damage of property was concerned the Applicant denied that he damaged the camera. He simply attempted to stick it together. This is in accord with the Third Respondent’s witness’s testimony that the Applicant did not know that there was a camera and that it was loose that he simply moved the camera and that it was not damaged.

7.9. The First Respondent misdirected herself when she found that the Applicant had damaged the camera.

7.10. The first Respondent found that the dismissal was procedurally fair when there was no evidence led by the Third Respondent in respect of the procedure followed. The First Respondent failed to consider the Applicant’s testimony that the request for legal representation was not even considered but bluntly refused. She failed to consider the Applicant’s evidence pointing out the number of deviations from the Third Respondent’s disciplinary procedure.

7.11. There is no rational connection between the evidence led and the conclusion reached by the First Respondent.

7.12. The proceedings before the First Respondent brought about an unjust result and stand to be set aside.

The review standard

The applicable test in reviews following Sidumo and Another v Rustenburg Platinum Mines Ltd and Others1 is that of reasonableness, which must be determined objectively with due regard to all the evidence before the Commissioner. In order to succeed in a review the Applicant must therefore establish that the award was one that would not have been made by a reasonable decision maker based on the evidence presented.

In Commercial Workers Union of SA v Tao Ying Metal Industries and Others,2 the Constitutional Court confirmed that a Commissioner is required to apply his mind to the issues properly and that failure to do so will result in an arbitration award being set aside.

The Applicant must therefore show that the outcome falls outside the parameters of what is reasonable.3

In Herholdt v Nedbank Ltd,4 the LAC set the test for interference in a latent irregularity as follows:

‘There is no requirement that the Commissioner must have deprived the aggrieved party of a fair trial by misconducting the whole nature of the enquiry. The threshold for interference is lower than that; it being sufficient that the Commissioner has failed to applied his mind to certain of the material facts or issues before him, with such having potential for prejudice and the possibility that the result may have been different.’

Reconstruction of record

The record of the proceeding was not made available to this Court and the Applicant explained what steps he had taken to reconstruct

the record. It appears that the Second Respondent filed the record of the proceedings comprising one cassette. The transcription of the record revealed that it only reflected the proceedings of 29 May 2008. On this day, the Third Respondent played a video footage and was shown to the First Respondent at the proceedings and what was recorded was merely the First Respondent’s comments and summary of the video footage shown to her. No oral testimony was heard on 29 May 2008. It is common cause that the proceedings continued on 29 July 2008 and 22 August 2008 and four witnesses testified. The Second Respondent did not file the record of the proceedings of the subsequent days that constituted the oral evidence adduced by the two witnesses. The Applicant submits that these two days was the most important and material part of the record. The Applicant’s representatives addressed several letters to the Second Respondent pointing out the incomplete record. On 23 April 2009, the Second Respondent filed a further notice of compliance in terms of Rule 7A (3) and advised that only one cassette could be found and it was unable to locate any additional tapes. The Second Respondent also filed 28 pages of the First Respondent’s handwritten notes. It appears that the Applicant found that the handwritten were incomplete and not complying with Rule 7A(8). A number of letters were then sent to the Second Respondent pointing out that the record remains incomplete. Finally, a response was received and on 13 August 2009 the Second Respondent set the matter down for the reconstruction of the record on 16 October 2009.

At the process, the Third Respondent could not assist or contribute in any meaningful way as the representative had not been involved in the matter prior to the reconstruction. The Third Respondent requested that copies of all the Applicant’s counsel notes and her heads of argument be made available to them and the reconstruction proceedings were adjourned to afford the Third

Respondent’s representative an opportunity to study the documents and to search for documents at their premises. After a period of seven months and with no responses to the Applicant’s representatives’ enquiries, the Applicant filed an affidavit supporting the relief that the matter be referred back to the Second Respondent for a hearing de novo.

In the case of Metalogik Engineering and Manufacturing CC v Fernandes and Others,5 the Labour Court held that it cannot review an arbitration award on its merits without a proper record of what transpired in the arbitration hearing. The Applicant is obliged, in the absence of a coherent transcription of the record of evidence led at the arbitration, to reconstruct the record.

In the case of Lifecare Special Health Services (Pty) Ltd t/a Ekuhlengeni Care Centre v CCMA and Others,6 the Labour Appeal Court explained how a reconstruction of a record should be undertaken as follows:

‘The tribunal (in this case the Commissioner) and the representatives... come together, bringing their extract notes and such other

documentation as may be relevant. They then endeavour to the best of their ability and recollection to reconstruct as full and accurate a record of proceedings as the circumstances allow. This is then placed before the relevant Court with such reservations as the parties may wish to note...’

It was argued that it is the Applicant who bears the onus to provide a transcript of the record to the Court. It is clear that the Applicant made several attempts to secure a record and to present same to this Court. It is further evident that the attempt to reconstruct the record did not produce any results. The question that I am required to consider whether I should dismiss the

application on the basis of an absent record or remit the matter to the Second Respondent for a fresh hearing. The Second Respondent is the custodian of the record of the proceedings conducted under its auspices and a litigant can safely expect to be placed with the record. A litigant who is unhappy with the outcome of an arbitration looks upon the Second Respondent to provide same in the case of a review application. This Applicant has strictly speaking done whatever was required of a litigant in similar circumstances and should be afforded an opportunity to ventilate his matter. To dismiss the review application would result in an injustice and unfairness especially when the Applicant had taken all the necessary steps to secure the record and pursue the application.

Conclusion

On the basis of the status of the record and its non existence, I do deem it necessary to remit the matter back to the Second Respondent for a determination afresh.

Costs

As far as costs are concerned, I see no reason why costs should not follow the cause. The Third Respondent is to pay the costs of the application.

In the circumstances, I make the following order:

The Arbitration award of the First Respondent made under case number GAPT 8883-07 dated 17 September 2008 is reviewed in its entirety and set aside.

The matter is remitted to the Second Respondent fro determination de novo before a Commissioner other than the First Respondent.

_______________________

Walele, AJ

Acting Judge of Labour Court

Appearances

For the Applicant: Advocate C Prinsloo

Instructed by: Vogel Malan attorneys Pretoria

For the Third Respondent: Advocate A M Mtembu

Instructed by: Mashiane Moodley and Monama attorneys

1(2007) 28 ILJ 2405 (CC) at para 110.

2(2008) 29 ILJ 2461 (CC) at para 76.

3See Edcon Ltd v Pillemer NO and Others (2008) 29 ILJ 614 (LAC).

4(2012) 33 ILJ 1789 (LAC) at para 39.

5 [2002] 10 BLLR 985 (LC).

6 [2003] 5 BLLR 416 (LAC) at para 17.